Saidou Dia v. John Ashcroft, Attorney General of the United States

ALITO, Circuit Judge,

with whom Judges SLOVITER and ROTH, join, concurring in part and dissenting in part.

I join Part I of the opinion of the Court. However, because I believe that the Court’s method of analyzing the Immigration Judge’s credibility determination is seriously flawed, I would deny the petition for review.

I.

Cases in which aliens seek asylum or withholding of removal based on the likelihood or probability of persecution if they are returned to their own countries are among the most difficult that we face. Much is obviously at stake, but the eviden-tiary record is very often meager. Indeed, it is common for an Immigration Judge (IJ) to have little other than the testimony of the applicant on which to base the decision, and this presents obvious and serious problems.

On the one hand, it is often unreasonable to demand that asylum-seekers provide corroborating evidence regarding their personal experiences in their home countries. Such incidents are often not memorialized (at least not in any records that are available to anyone outside the home government), and aliens fleeing persecution may be lucky to escape at all and may have no opportunity to secure any documentary evidence that exists or to obtain statements from witnesses who are willing to help. In addition, once asylum-seekers reach this country, they may find it very hard to obtain corroborating evidence. It may be difficult to contact people at home, and persons who might assist may be prevented by the home government from doing so or may be reluctant to help for fear of governmental retribution. Thus, it is often not reasonable to demand corroboration.

On the other hand, however, testimony by asylum-seekers cannot simply be accepted without question. Persons wishing to escape deplorable conditions that fall short of persecution have a strong motive to fabricate tales of persecution, and it must be recognized that such stories are not hard to construct. An asylum-seeker may have heard another person’s account of persecution and may substitute himself or herself as the victim. Or an asylum seeker may take an incident in which he or she was actually involved and may exaggerate the conduct of the military or police so as to make it reach the high standard needed to constitute persecution.

As Professor David A. Martin, former general counsel of the INS, has written, the government is rarely able to conduct a field investigation of matters such as appli *262 cants’ “past political activities, or specific abuses or threats directed against them or their families or friends.” David A. Martin, “Reforming Asylum Adjudication: On Navigating the Coast of Bohemia,” 138 U. Pa. Law Rev. 1247, 1280 (1990). As a result, “[ajsylum determinations often depend critically on a determination of the credibility of the applicant, for she will usually be the only available witness to the critical adjudicative facts of the case. Because that person has substantial incentives to lie or to embroider the truth (and few disincentives), this makes for a system vulnerable to manipulation.” Id. at 1281-82 (footnotes omitted). 1 These two factors- — the frequent unavailability of corroboration and the ease of fabricating a persecution claim — make determinations regarding the credibility of asylum-seekers critically important.

In deciding how such determinations are to be made in this country, Congress could have taken a variety of different approaches. The approach that it chose, however, was to entrust the responsibility for making these important determinations to the Attorney General, with very limited judicial participation. Specifically, we must accept a credibility determination made by those to whom the Attorney General’s authority has been delegated “unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252 (b)(4)(B). This limited role sometimes puts us in the uncomfortable position of deferring to a credibility determination about which we are skeptical. But the statute leaves us no alternative.

II.

In analyzing the IJ’s credibility decision in this case, the Court makes three fundamental mistakes. First, the Court fails to recognize that it is entirely proper for a fact finder to take into account “background knowledge” about human behavior in assessing the plausibility of testimony. Second, although the Court pays lip service to the very limited standard of review that we must apply, the Court in effect inverts that standard and refuses to sustain the IJ’s credibility finding, not because a reasonable adjudicator could not find that Dia lacked credibility, but because, in the Court’s view, a reasonable fact finder could make a contrary finding. Third, the Court errs in failing to take the totality of the circumstances into account in reviewing the IJ’s credibility determination. Instead, the Court focuses one by one on specific statements that were made by Dia and asks whether each of those statements is plausible. The Court fails to recognize that a series of statements may, taken together, provide a reasonable basis for finding a witness to be incredible even if each statement standing alone might be credible.

A.

“Background knowledge.” In assessing the credibility of testimony, fact finders commonly ask whether the testimony is consistent with their own understanding of how people usually behave. Judge Wein-stein uses the term “background knowledge” to describe the “ ‘vast storehouses of commonly-held notions about how people ... generally behave,’ ” and he explains that credibility determinations may be based on such knowledge even though it is not in the record. United States v. Shonubi, 895 F.Supp. 460, 479 (E.D.N.Y.1995) (citation omitted).

*263 Professor Uviller has provided a useful description of the process used by a fact finder in deciding whether testimony comports with such “background knowledge.” He writes:

The process by which a juror tests a story for plausibility involves some sort of cerebral matching. A juror juxtaposes a set of recounted actions and events against her experience, imagination, and derived intelligence concerning the behavior and reactions of real and fictitious others: “Is this the sort of thing that I might do in those circumstances?” “Would anyone I know have reacted that way?”.... These are the sorts of guides to plausibility on which the juror must rely.

H. Richard Uviller, “Essay: Credence, Character, and the Rules of Evidence: Seeing Through the Liar’s Tale,” 42 Duee L.J. 776, 783 (1993).

Professor Uviller also explains the weaknesses of this process:

The trouble, of course, is that frequently the cultural context and customs of the actors in the events recounted by the witnesses are totally alien to the jurors seeking a plausibility match. Neither the jurors nor anyone they are likely to know have had any experiences comparable to those now described from the witness stand by an adolescent drug dealer or a professional underworld hoodlum.

Id. Nevertheless, this process of judging credibility is employed every day in criminal and civil cases, and there is no reason why it cannot also be used in asylum cases. 2 In other words, an IJ in an asylum case may properly judge a witness’s credibility by comparing that testimony to the IJ’s background knowledge about human behavior in general and about the behavior of those seeking entry into the United States.

In this case, however, the Court faults the IJ for employing this very process. As the Court notes, Dia testified that his wife told him that about 25 soldiers had come to their home looking for him and that, when Dia’s wife told them that she did not know his whereabouts, the men beat and raped her and burned the house. AR 86. Dia stated that, at his wife’s urging, he fled the country alone, leaving his wife and child behind. AR 86. In finding that Dia was not credible, the IJ expressed the belief that a woman in the position of Dia’s wife would probably not urge her husband to leave her behind. AR 43. The IJ also expressed the belief that a man in Dia’s position would probably “suggest that they flee the country together.” AR 43. The IJ thus engaged in precisely the mental process that Professor Uviller de *264 scribed: she compared what Dia’s wife allegedly did (urging that her husband flee without her) with what the IJ thought a woman in that position would likely do, and the IJ compared what Dia did (leaving alone) with what she thought a man in that situation was likely to do. Because the IJ concluded that spouses in the position of Dia and his wife would not likely behave in the way that Dia described, the IJ found it unlikely that Dia’s story was true.

Although the mental process in which the IJ engaged was routine and entirely permissible, the Court rejects the IJ’s approach. The Court criticizes the IJ for failing to explain her reasoning (Maj. Op. 255), but the basis for her conclusion could not be any clearer: the IJ’s “background knowledge,” “her experience, imagination, and derived intelligence concerning the behavior and reactions of ... others” told her that a woman was not likely to urge her husband to flee alone if she had just been beaten and raped by soldiers who were looking for him. Similarly, the IJ’s “background knowledge” told her that a man was not likely to leave his wife and child behind under such circumstances. What more the Court expects the IJ to have said on this point is a puzzle. Does the Court expect the IJ to have cited to empirical evidence about how couples generally behave when the wife has just been beaten and raped by soldiers who are looking for the husband for political reasons?

B.

Reversing the standard of proof. We are required to sustain the IJ’s findings “unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252 (b)(4)(B). The Court, however, repeatedly turns this standard on its head and finds that aspects of Dia’s testimony should have been found to be credible because a reasonable person might have found them believable.

The Court’s evaluation of Dia’s testimony about his decision to flee by himself is again instructive. Rejecting the IJ’s determination that it was “unlikely” that a couple in the position of Dia and his wife would agree that the husband should escape alone, the Court states: ‘We can think of any number of reasons why Dia’s wife might have urged him to leave without her,” such as a belief that Dia “could move more quickly and elude detection more easily if he was traveling alone.” Maj. Op. at 255 & n. 23. In other words, the Court inverts the statutory test and refuses to accept the IJ’s finding because the Court can imagine grounds for a contrary finding.

The Court performs the same slight of hand in evaluating the “tomato picker” story. Although Dia testified at the asylum hearing that he had never been in Italy (AR 102), the INS memo regarding his interview upon arrival at JFK Airport on March 27, 2001, reported that Dia had apparently been employed as a tomato picker in Italy. AR 237. The memo also reported that Dia was en route to join a ship in Honduras as an engine room technician (AR 237), and there is documentary evidence that supports the account in the memo. Dia had in his possession a valid United States visa that bore his name and photo and that had been issued in Milan. AR 225. He also possessed an “Employment Letter” from Houcon Cargo Systems of Rotterdam that was addressed to him at an address in Brescia, Italy. AR 218-221. The letter stated that Dia had been employed by the company for a two-year period as an engine room technician and instructed that he was to board a ship in Honduras by April 10, 2001. AR 218. When asked about these documents, Dia stated that they had been provided to him *265 by the unnamed man who had procured his passport, but the IJ found that account dubious. AR 44.

Instead of asking whether a reasonable adjudicator could infer from this proof that Dia had been in Italy and had therefore lied at the hearing, the Court postulates all sorts of possible explanations for the evidence pointing to residence in Italy. Dia’s statement at the airport might have been misunderstood because of his lack of facility in French, the language in which he spoke at that time; if Dia did say at the airport that he had been employed in Italy, he might have told an untruth because his statement “was not taken under oath” and he was simply parroting what the man who provided the documents had told him to say. Maj. Op. at 257-58. Although the visa was genuine, that did not prove that it had been “necessarily legitimately obtained.” Id. at 257 . And although the visa bore Dia’s photo, it might have been obtained by someone else. Id. Houcon Cargo might not exist. Id. at 257 . If it does, the letter might not be authentic. Id. The address in Brescia, Italy, might be fictitious, and even if it is not, the letter might have found its way into Dia’s possession without being mailed to that address. Id. The Court concludes:

Dia testified that he got the documents from the smuggler and, thus, that they were fraudulent. The record contains no evidence contradictory to this story.

Id.

In effect, the Court says that the IJ was bound to accept Dia’s testimony that he had never been in Italy unless there was conclusive proof to the contrary. If we applied this standard to the findings that are routinely made by judges and juries in federal litigation, few findings could be sustained.

C.

Totality of the circumstances. In judging the credibility of a witness’s story, a fact finder is entitled to consider whether the story as a whole has the ring of truth. Suppose that a witness asserts that something a bit out of the ordinary happened. Since unusual things do happen, a fact finder might credit that assertion if the witness does not say anything else that is questionable. But suppose that the witness goes on to assert that a whole series of unusual things happened. At some point, the fact finder may — reasonably— conclude that the witness’s testimony as a whole is unbelievable.

Here, the Court rejects the IJ’s determination that Dia’s testimony was not credible because, taking each of his contested statements one by one, the Court finds each plausible. Thus, the Court fault’s the IJ’s credibility finding because, in the Court’s view, it is plausible that about 25 men would be sent to Dia’s home to look for him; it is plausible that Dia would flee alone and leave his wife and child behind even though his wife had been beaten and raped by soldiers looking for him; it is plausible that Dia was able to procure a police stamp even though the authorities were looking for him; it is plausible that a man whose identity Dia did not know was able to obtain for Dia a legitimate passport and legitimate United States visa; it is plausible that even though Dia had never been in Italy, he would say on arriving in this country, that he had been employed in Italy as a tomato picker; and it is plausible that even though Dia had never been in Italy, he would have a United States visa that was stamped as issued in Milan and an Employment Letter addressed to him at a place in Italy. Even if the IJ was bound to view each of these facts as plausible — and I do not think that she was^ — it does not follow that she was bound, when *266 considering all of these facts together, to find Dia credible.

III.

Viewing the record as a whole, I believe that a reasonable fact finder could find that Dia’s testimony was not believable and could deny his application on that basis.

• In light of the previously mentioned documentary evidence and Dia’s statement at the airport, it was reasonable for the IJ to question whether Dia told the truth when he testified at the hearing that he had never been in Italy. While this evidence may not prove conclusively that Dia had been in Italy, it certainly provided a reasonable basis for the IJ to infer that he had. And if Dia lied about this point, the IJ could reasonably doubt the truthfulness of the remainder of his testimony.

• It was reasonable for the IJ to question Dia’s truthfulness based on Dia’s statement that, even though his wife had been raped and beaten by men who were looking for him, he and his wife agreed that he should flee alone. As explained above, the IJ’s belief about how a couple would likely react under such circumstances is just the sort of “background knowledge” about human behavior that a fact finder is entitled to consider in evaluating a witness’s credibility. Moreover, the particular belief in question (that a couple, under the circumstances, would not likely decide that the husband should run away by himself) is at least reasonable. Since Dia’s wife had allegedly been beaten and raped on one occasion when she did not tell Dia’s pursuers where he was, is it unreasonable to think that a couple in that position would fear that something similar might recur if the husband left alone and the wife was again questioned?

• It was reasonable for the IJ to question Dia’s testimony that about 25 men went to his house looking for him. A reasonable adjudicator could be skeptical that so many men would be sent to look for a single, low-ranking person. Similarly, it was reasonable for the IJ to question whether, as Dia testified, his alleged pursuers would think that a low-ranking person like Dia could help the leader of an opposition political group to escape. And it was reasonable for the IJ to question how Dia was able to obtain a police stamp on his passport if the authorities were searching for him. While each of these statements standing alone may not give rise to a strong inference of mendacity, each statement can be questioned, and when taken together they can reasonably contribute to a finding that Dia was not credible.

Whether I would have believed Dia if I had been given the responsibility to make that determination I cannot say. But viewing all of the evidence in the record and applying the narrow standard of review prescribed by statute, I cannot say that a reasonable adjudicator could not find Dia to be incredible.

. Professor Martin goes on to express his belief that most applicants are honest, id. at 1282 — a fact that I do not question- — -but some applicants may not be not truthful, and our current system relies on IJ's to identify those applicants.

. The Court notes (Maj. Op. 250-51 n.21) — as have I — that this method of judging credibility is hardly foolproof. What the Court does not recognize, however, is that the same is true of virtually all of the other methods of assessing credibility that are available to IJ's. Two of the most common methods involve assessment of demeanor and impeachment based on prior inconsistent statements. As to demeanor, Judge McKee's opinion notes that the reliability of credibility determinations based on demeanor has been challenged and that there are special reasons for questioning this technique when the witness testifies through an interpreter and comes from a different cultural background. As to impeachment with prior inconsistent statements, the Court notes the problems with undue reliance on airport statements (see Maj. Op. 257-58), and reliance on statements made in asylum applications and subsequent interviews may also present difficulties due to translation problems and the volume of cases that must be processed. In sum, virtually all of the methods of assessing credibility that are available to IJ's are fraught with problems, but it is nevertheless essential that IJ's make such assessments using the admittedly imperfect tools that are at hand.